Alicia Cordova v. Carolyn W Colvin

Filing 19

MEMORANDUM AND OPINION by Magistrate Judge Victor B. KentonThis Memorandum Opinion will constitute the Courts findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed. The Complaint will be dismissed with prejudice. (rh)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 ALICIA CORDOVA, 12 13 14 Plaintiff, v. 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 13-04156-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff’s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 (“JS”), and the Commissioner has filed the certified Administrative 26 Record (“AR”). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge (“ALJ”) properly 1 determined that Plaintiff could perform her past relevant 2 work. 3 (JS at 4.) 4 5 This Memorandum Opinion will constitute the Court’s findings of 6 fact and conclusions of law. After reviewing the matter, the Court 7 concludes that the decision of the Commissioner must be affirmed. 8 9 I 10 THE ALJ PROPERLY DETERMINED THAT PLAINTIFF 11 CAN PERFORM HER PAST RELEVANT WORK 12 At the administrative hearing (AR 43-63), the ALJ utilized the 13 assistance of a vocational expert (“VE”). The VE identified one of 14 Plaintiff’s 15 transcriber, [DOT] 203.582-058, sedentary, skilled, SVP of 5.” (AR 16 51.) 17 sequential 18 performing the PRW. (AR 29.) Plaintiff asserts that this was an 19 erroneous finding because the ALJ relied upon the VE’s testimony which 20 failed to substantiate an asserted discrepancy between Plaintiff’s 21 residual functional capacity (“RFC”) and the demands of the PRW. 22 Specifically, Plaintiff asserts that while Plaintiff’s RFC provides, 23 in part, that she can only “occasionally” push/pull with her lower 24 extremities, the Dictionary of Occupational Titles (“DOT”) definition 25 of her PRW requires more. For the following reasons, the Court 26 disagrees. In jobs his (Past Decision, evaluation Relevant the ALJ Work, or determined procedure that “PRW”) at Step Plaintiff was as Four “medical of capable the of 27 The law is clear that if there is such a discrepancy, it must be 28 fully explained in the ALJ’s Decision. See Massachi v. Astrue, 486 2 1 F.3d 1149, 1152-1153 (9th Cir. 2007). 2 Here, the VE found that Plaintiff’s PRW does not require more 3 than occasional ability to use her lower extremities to push/pull. (AR 4 50-53, 59-61.) Plaintiff asserts that because her PRW requires that 5 she operate a transcribing machine, she interprets that “the DOT 6 describes constant use of the fingers to type.” (JS at 7, citing 7 Exhibit [“Ex.”] 1 at p. 3.) The crux of Plaintiff’s argument is that, 8 “This constant pushing of a foot control to pause the 9 machine while typing is inconsistent with the ALJ’s 10 limitation of [Plaintiff] from more than occasional pushing 11 with the lower extremities.” 12 (JS at 8.) 13 14 Plaintiff’s argument fails for several reasons. First, there 15 simply is no deviation between the determined RFC, which Plaintiff 16 does not dispute, and the DOT’s description of the exertional demands 17 of her PRW. Specifically, as noted, Plaintiff’s PRW requires “exerting 18 up to 10 pounds of force occasionally.” Further, the DOT description 19 itself defines “occasionally” as “activity or condition exists up to 20 1/3 of the time.” (Ex. A at 1.) The Commissioner’s own regulations 21 define “occasionally” as “occurring very little up to one-third of the 22 time.” (See SSR 83-10.) 23 Further, as the Commissioner correctly notes, Plaintiff’s PRW 24 requires a sedentary exertional 25 regulations classify a job which requires pushing or pulling of leg 26 controls as light work. See 20 C.F.R. § 404.1576(b). (Light work 27 encompasses jobs that require “very little” lifting but “some pushing 28 or pulling of arm or leg controls.”) Thus, if in fact Plaintiff’s PRW 3 level. The Commissioner’s own 1 required more than occasional pushing or pulling with the lower 2 extremities, it would have been classified as light instead of 3 sedentary work. 4 For the above reasons, there was no actual or even apparent 5 conflict between the requirements of the DOT and the testimony of the 6 VE that Plaintiff could perform this work. The ALJ was therefore 7 entitled to rely upon the VE’s testimony. See Bayliss v. Barnhart, 427 8 F.3d 1211, 1218 (9th Cir. 2005). 9 Finally, Plaintiff herself asserted that in doing her job, she 10 never had any difficulty with her lower extremities. Her testimony, 11 rather, was that she could not perform her job because sitting caused 12 her back pain. (AR 53-54.) As the Commissioner notes, Plaintiff’s own 13 description of her PRW is “highly probative” of the demands of that 14 job. See JS at 15, citing Matthews v. Shalala, 10 F.3d 678, 681 (9th 15 Cir. 1993); see also SSR 82-62. 16 For the foregoing reasons, the Court finds no error with regard 17 to Plaintiff’s sole issue, and therefore, the decision of the ALJ will 18 be affirmed. 19 The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 20 21 22 DATED: March 20, 2014 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 4

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